Civil Society Prison Reform Initiative (CSPRI): briefing

Meeting report

CORRECTIONAL SERVICES PORTFOLIO COMMITTEE
1 November 2005
CIVIL SOCIETY PRISON REFORM INITIATIVE (CSPRI): BRIEFING

Chairperson:

CSPRI PowerPoint Presentation

SUMMARY
The Civil Society Prison Reform Initiative (CSPRI) briefed the Committee on the need for non-custodial alternatives to imprisonment. The discussion was dominated by Members concerns regarding the still large number of awaiting trial detainees. Better cooperation between the judiciary and Correctional Services was needed in order for the problem to be addressed adequately. Magistrates needed to be educated in alternative sentencing options and should be held accountable when not applying them. While care should be taken to keep those who did not have to be in prison, out of the system, those who posed a threat to society and needed to be incarcerated would remain behind bars. The Chairperson emphasised that the Portfolio Committee as well as Government was dedicated to a crime free South Africa.

MINUTES
CSPRI Presentation
Citing international and domestic law as well as examples from South African case law, Mr Lukas Muntingh, (Researcher: CSPRI) argued for alternative sentencing on the grounds that it was more appropriate for certain types of offenders and offences, was more humane since it promoted rehabilitation and reintegration and was less costly than imprisonment. It would also assist in decreasing the prison population and would facilitate better administration of prisons and the proper correctional treatment of those who truly needed to be in prison.

Discussion
The Chairperson was curious about why Mr Muntingh claimed that the awaiting trial population has decreased in light of the fact that the number of children and juveniles awaiting trials has grown. The latest awaiting trial detainee figures stood at 49000-50 000. Mr M Phala (ANC) raised the same concern.

Mr Muntingh admitted that he had not seen the figures for the past three months. He agreed that there were some prisons in the country that were severely overpopulated. 67% of awaiting trial detainees were siting in 19 prisons around urban areas. He said that since we knew where these detainees were, we knew which courts had the delays. The problem was manageable. He said that when the awaiting trial population was at its highest about two years ago the figure stood at 68 000. So the figure has since come down. The reasons for this ranged from improved bail legislation (if a person could not afford bail he or she would not be kept in the system), greater sensitivity around the issue of overcrowding and magistrates having become more creative in their sentencing.

Mr Phala asked what the Committee could do about Commissioners who did not perform their duties. Mr Muntingh responded that the oversight visits undertaken by the Committee were the right thing to do. Through these visits it became clear that the Committee as interested in what was going on. He advised that Magistrates could possibly be taken along since they were important role players.

Mr J Selfe (DA) commented that in the course of the Committee’s oversight visits it discovered that one of problems related to the fact that those staff that had discipline problems were allocated to community correction facilities. This further devalued the system of community corrections. His question related to diversion. He requested Mr Muntingh to expand on the National Directorate of Public Prosecution Guidelines with regards to who qualified for diversion. To his knowledge the decision was left to the prosecutor. Courts had to give compelling reasons as to why minimum sentences should not be imposed. The court should also have to indicate why it thought that in certain cases diversion was not considered. Should magistrates not be forced by law to apply diversion to cases where it would be appropriate?

Mr Muntingh replied that diversion was a decision that was made by the prosecution, while non-custodian sentences were conviction based. He said that he was not aware of the latest guidelines from the National Prosecuting Authority (NPA). He said the guidelines differed from province to province. This was problematic also. The Prosecutor would be an important stakeholder to bring on board. Courts should be compelled to explain why diversion was not considered. He mentioned that Zimbabwe had in 1991 decided to use diversion as a means of dealing with their prison population. They had managed to radically reduce their prison population in four years.

Mr N Fihla (ANC) asked whether Mr Munting would consider the theft of R73 000 a minor offence (S vs. Van Vuuren). Mr Muntingh said that he could not express and opinion on how the court saw the matter. It may have taken other mitigating factors into consideration.

Mr Fihla was puzzled by the matter of S v R, in which a sexual offender had been sentenced to correctional supervision. Sexual offences were serious offences. Such a ruling could cause irregularity and discrimination since a person who might not be able to afford the therapy (which was a condition of the correctional supervision), would be disadvantaged.

Mr Muntingh said that point was valid. However, a poor person would be eligible since the therapy would be a court-mandated service for which the State would pay.

Mr Fihla requested clarity on the difference between correctional supervision and community supervision. Mr Muntingh replied that once sentenced to correctional supervision the order would specify with degrees of seriousness the conditions of the sentence. The court could also instruct a person to do community service. A drug offender could for instance be instructed to attend an outpatient drug rehabilitation centre. The nature of the community service was entirely up to the court. Officials from the Department of Correctional Services made random visits to make sure that the conditions of the court’s ruling were adhered to. Mr Muntingh added that community service was often a more difficult sentence since the offender was responsible for sticking to it.

Mr S Mahote (ANC) wanted to know why magistrates lacked the knowledge to apply alternative sentencing methods. Were they not trained in these options?

Mr Muntingh replied that while training did occur, it might be that alternative sentencing was neglected.

Mr Phala asked whether the Commissioners understood all aspects of the process. Mr Muntingh said that he assumed that Commissioners took care to assure that their staff were properly trained to perform their task. If this was not the case the matter could be taken to court for the magistrate to ensure that the process was enforced.

Ms Mgwenya (ANC) said that her main concern was about overcrowding and that officials did not adequately monitor inmates. Mr Muntingh responded that the neglect of administrative and monitoring duties could land officials in serious trouble.

Mr Xolo (ANC) wanted to know what magistrates were doing to promote the integration of offenders into the community. He pointed out that Department did not have structures in place to promote reintegration. How was integration possible without such structures? Mr Muntingh said that from the White Paper it appeared as though the Department was planning on setting up such structures. He mentioned that the aftercare was a concern since a very small part of the budget was spent on assisting people post imprisonment.

Mr Xolo asked whether a person who broke the conditions attached to there freedom was taken to prison or whether he or she appeared before the court again. Mr Munting said it was dependent on the sentence that had been imposed as well as the transgression that had been committed. A parole violation did not go to court unless it happened repeatedly. He said that in excess of 80% of people complied with the parole conditions. If however an offence was criminal the commissioner reviewed it or it was reported to the SAPS.

Mr Xolo required clarity on the difference between fines and day fines. Mr Muntingh said that day fines were calculated based on an offender’s daily income.

Ms M Makgate (ANC) asked what kind of relationship existed between magistrates and the tribal authorities. She commented on the difficulty of implementing community service sentences in rural communities. Mr Muntingh said that the she had raised an interesting point but acknowledged that he was fairly ignorant regarding this relationship. He was not aware as to whether or not there was a relationship between the two.

Mr Fihla commented on the fact that community service and correctional supervision involved longer processes. Since magistrates’ performance was measured on how many cases they resolved, they were very often forced to take short cuts. Should the Departments of Correctional Services and Justice not negotiate to try to find a common ground? Mr Muntingh agreed that the two Departments were working against each other. The Department of Correctional Services wanted to reduce the number of people in prison while the Department of Justice met targets by taking quick routes.

The Chairperson commented that it was worrying that while fewer people were being arrested, they were staying in prison for longer. The department was planning on building more prisons. Less money was spent on community corrections than infrastructure.

Mr Muntingh responded the Committee that South Africa’s incarceration rate was the 15^th highest in the world and by far hen highest in Africa. He said that his organisation was not in favour of more prisons being built. What purpose would building more prisons serve? He emphasised that non-custodial options would be a lot cheaper. He said that he was not sure whether the police were making fewer arrests or not. What he did know was that fewer people were coming into the system. He informed the Committee that once cases got to court he conviction rate was very high.
The inspecting Judge’s report indicated that 60% of all awaiting trial detainees were released without going to trial. The police had limited investigative capacity. This could be the reason for the drop. This figure was worrying because it contributed greatly to the problem of overcrowding.

Mr L Tolo (ANC) asked how more resources could be found to assist in this matter. Mr Muntingh responded that it was his understanding that if the Department submitted a good plan to the Treasury it would receive the necessary funds.

Mr Tolo commented on the case that in Kimberley there was a woman who has been imprisoned for much longer than the period she had been sentenced to. How could something like this happen? Did Non-Governmental Organizations (NGOs) and Community-Based Organisations (CBOs) come across the same problems? Was the Department not checking?

Mr Muntingh commented that given the constraints of the sentence and policy as well as public safety, it was the Department’s responsibility to release people at the earliest opportunity. He pointed out that the Department could find itself in court around such issues on a continuous basis. He admitted that he had not asked for this information when visiting prisons but could imagine that there were more such cases. He said that more investigation was needed in order to ascertain whether this was an isolated incident or whether it was a recurrent practice. He noted that the United Nations Special Reporteur on discrimination also raised the issue of people being retained for longer than they were meant to be.

Mr S Moatshe (ANC) asked how Mr Muntingh and his organisation have contributed to the reduction of the number of people in prison. Did he have information on all correctional facilities across the country? Has he visited them all? What was his organisation’s interaction with the judiciary?

Mr Muntingh responded that the CSPRI’s contribution as far as overcrowding was concerned was in the form of research as well as lobbying and advocacy, that is, they provided information to stakeholders such as the Portfolio Committee and the Department. They had conducted research on alternative sentencing in four jurisdictions in South Africa and Adv Anne Skelton had completed the report in 2004. The organisation also engaged in discussion and research around the minimum sentencing legislation. In September 2004 CSPRI addressed Judges of the Supreme Court of Appeals in Bloemfontein and in early October this year they had addressed the Judges if the Eastern Cape division. Given that the institution was more university based, it could ensure that decision-makers had access to accurate information. The institution had access to the Department’s normal management reports which gave statistical data relating to sentence profiles and so on. Visits were conducted when the opportunity arose.

Mr Moatshe commented that Wales and the US had reported that their prisons too were chronically over crowded. Mr Muntingh responded that he was aware that in Wales and England, if one’s trial did not commence within a certain time period, the Head of Prison had the authority to release that person on bail. The argument was that one could not detain a person for an unreasonable period of time. If the State accused you of a crime it had the obligation to present evidence to that effect.

Mr Tolo said that he agreed with Mr Muntingh that a person should not be imprisoned for petty crimes. He commented in police and magistrates blaming each other for delays in bringing cases to court and resolving them. Mr Xolo reminded the Committee of a magistrate in Douglas who did not tolerate delays. If there was not sufficient evidence cases were dismissed. He wondered how long it would take to have many more such magistrates who would assist in reducing overpopulation in prisons.

Mr Muntingh pointed out that the interaction between the court and the prison was not his field of expertise, but he said that this was a continual source of problems. This interaction was marked by huge logistic and administrative problems. There have been various initiatives through the integrated justice system to resolve these. The inmate tracking system was one such attempt. It aimed to at least make sure that the right people were taken to courts. If necessary he would source more information and make it available to the Committee.

The Chairperson commented on the cost involved in the incarceration of petty criminals who were often detained for long periods either because they could not afford the measly bail set by the magistrate or because there were delays. He illustrated this by using the example of a person who was arrested for trespassing on 23 September and was due to appear in Court on 20 October. This awaiting trial detainee could not afford the R100 bail set by the magistrate. Accommodating him in prison for the 35 days cost the Department R3990 (at R114 a day). He emphasised that this was just one case at one prison.

Mr Muntingh added that taking a person through the admission process cost R1 800. Imprisonment was a very, very expensive option. Alternative methods were needed, while being mindful of public safety. There were some people who needed to be detained and the Courts needed to use their resources to assess who should be detained and who could be released.

Mr Phala asked whether there was a monitoring system in place to monitor the performance of magistrates who with their sentencing contributed to overcrowding. Was there one to monitor the awaiting trial population?

Mr Muntingh said that the amount of bail that was set by the magistrates indicated clearly that they did not consider these offenders to be flight risks or a danger to society. There was supposed to be a monitoring mechanism through the office of the Inspecting judge. Each prison had an independent prison visitor, particularly at the major awaiting trial prisons. He said that he was not sure to what extent the IVPs and prison inspectors engaged with that kind of information. Th Department had an obligation and a duty to investigate all possible solutions. There should be an establishment to look specifically at cases where bail was set at under R1000. Heads of prisons who had problems as far as the number of awaiting trial detainees had a duty to inform the court that they had problems accommodating more detainees.

There was no monitoring mechanism in place too monitor the awaiting trial population specifically. The Office of the Inspecting Judge dealt with individual complaints from prisoners. It also dealt with complaints around imprisonment but not with complaints around the actual judicial process. It was not in its mandate to address issues around appeals, delays in process or bail. Mr Phala had identified an important gap and the Department needed to be asked what they were doing about this since they had all the information.

The Chairperson said that the Portfolio Committee too needed to stress that they would "never, ever become soft on crime". He said that the public needed to know that "this Government was very serious about addressing issues of crime in this country". He said that the Committee was concerned that while those who need to be in prison were roaming the street because they could afford good legal representation, and could meet the conditions the Court set for them. People who pose a threat to society should be in prison. He felt that magistrates and the cluster were doing their level best to address the issues raised. He requested the CSPRI and other NGOs to conduct research into why so many young people were imprisoned on charges of rape. Government could not solve the problem of overcrowding on its own. Everyone needed to get involved and make a contribution to the solution of the problem Everyone was affected by this problem because the future of South Africa, its children, were in prison.

The meeting was adjourned